* Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 97-10435

Summary Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DERRICK WAYNE JOHNSON,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(USDC No. 5:96-CR-94-1)

_________________________________________________________________

December 15, 1997

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Convicted on six counts, Derrick Wayne Johnson appeals his

jury convictions of conspiracy to possess with intent to distribute

50 grams of cocaine base and two counts of possessing with intent

to distribute cocaine base within 1000 feet of a playground. He

asserts that there was insufficient evidence to support the jury’s

verdict that the Dixie Little League baseball fields were a
playground and that he conspired to possess with intent to

distribute 50 grams or more of cocaine base.

“Playground” is defined as “any outdoor facility ... intended

for recreation, open to the public, and with any portion thereof

containing three or more separate apparatus intended for the

recreation of children including, but not limited to, sliding

boards, swingsets, and teeterboards.” 21 U.S.C. § 860(e)(1).

Needless to say, the purpose of the statute is to create drug-free

zones by increasing punishment for drug transactions that occur

near places where children gather. United States v. Echevaria, 995

F.2d 562, 563-64 (5th Cir. 1993). Johnson does not dispute that

the baseball fields are an outdoor facility intended for recreation

and open to the public; rather, he contends that the evidence at

trial of four backstops and two concession stands did not

sufficiently demonstrate three or more separate apparatus.

Viewing the evidence in the light most favorable to the jury’s

verdict, evidence of four baseball backstops, three of which were

for either little league or pee-wee little league fields, was more

than sufficient to prove the existence of three separate apparatus

intended for the recreation of children. See United States v.

Broussard, 80 F.3d 1025, 1030-31 (5th Cir. 1996); see also United

States v. Parker, 30 F.3d 542, 552 (4th Cir.), cert. denied, 513

U.S. 1029 (1994). Furthermore, in that three of the fields were

for children’s leagues, finding that the baseball fields are a
protected location under § 860 furthers Congress’ intent in

enacting the statute. See Echevaria, 995 F.2d at 564.

Concerning the claim of insufficient evidence to support the

jury’s verdict that he conspired to distribute 50 or more grams of

cocaine base, Johnson claims it supports only 49.1 grams. Codefendant Jerome Freeman’s testimony that he and Johnson spent

almost every day together; that, during the nine-week period

covered in the indictment, Johnson received nine to ten ounces (one

ounce equals 28 grams) of cocaine base to distribute every week or

every other week; that Johnson had approximately 30 to 40 regular

customers; and that Johnson made up to $4000 a day from his

dealings sufficiently supported the jury’s finding. United States

v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994).

The Government questions on appeal whether the imposition of

concurrent 240-month sentences for counts two through six are

correct. Johnson did not challenge these sentences in district

court and does not raise this issue on appeal. Therefore, we

review the sentences only for plain error. United States v.

Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc), cert.

denied, 513 U.S. 1196 (1995). To show plain error, Johnson must

demonstrate (1) error by the district court; (2) that is obvious,

clear, or readily apparent; (3) affecting substantial rights; and

(4) seriously affecting the fairness, integrity, or public

reputation of judicial proceedings. Id. at 162. The sentences

appear to be correct, see United States v. Leonard, 61 F.3d 1181,
1186 (5th Cir. 1995); and, regardless, we find no prejudice to

Johnson’s substantial rights, and therefore no plain error, because

the district court imposed the sentences for counts two through six

concurrently with the statutory minimum sentence of 240 months’

imprisonment for count one. 21 U.S.C. § 841(b)(1)(A); U.S.S.G. §

5G1.1(b) (requiring the statutory minimum sentence be used when it

is greater than the maximum sentence under the guidelines).

AFFIRMED